TMI Blog2012 (1) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in the Court having jurisdiction. The respondent stated that it had sought leave under clause 12 of the Letters patent to file the petition in this Court though the cause of action had accrued at Navi Mumbai in the Thane District where the agreement between the parties was entered into and where the immovable properties of the respondent are situate. It was shown to Court that leave as claimed by the respondent was not obtained. Consequently, the Court could not exercise jurisdiction upon the respondent s own claim. The petition under Section 34 of the Act is now pending hearing before the Court at Navi Mumbai in Thane District to which it was sent. 3. The appellant has sought to enforce the aforesaid award on the ground that a movable property of the respondent being a bank account in ICICI Bank is within the jurisdiction of this Court and the appellant must file its execution application, as all other applications against decrees of the Court are filed, in what is known as the Executing Court which would be the Court, not where the cause of action arose, or the respondent resides or carries on business, or where the respondent may have immovable properties, but where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de inferior to such principal civil Court, or any Court of Small Causes. (emphasis supplied by underlining) 8. This concept has been explained by a single Judge of this Court in the case of Tata International Ltd. Vs. Trisuns Chemical Industry Ltd. 2002(2) B.C.R. 88. In that case also a foreign award was sought to be enforced in a Court which the respondent claimed, lacked territorial jurisdiction. In paragraph 2 of the judgment, the Court considered the distinction between the aforesaid two provisions relating to the subject matter of the two aspects: in an arbitration the Court would consider the subject matter of the arbitration; in the enforcement of the award the Court would consider the subject matter of the award as the determining factors. This stands to reason and logic. The subject matter of the arbitration may be a certain contract, a certain property etc., The territorial jurisdiction of the Court would be where the contract was entered into or where the some or all the properties of the respondent would be. Once the arbitration is concluded and has to be enforced it is the subject matter of the award which would have to be seen. That would be whether the award i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o follow the procedure under Order 21 Rule 17 of the CPC upon receiving such application. The proviso to Rule 17 of Order 21 relates to a money decree obtained by the judgment creditor or the decree holder. Upon these preliminary measures being undertaken the Executing Court would issue process for execution under Order 21 Rule 24 of the CPC. It may be convenient to set out the relevant parts of the necessary provisions relating to execution of orders and decrees in the CPC to understand the concept of the procedure for execution which run thus: Section 51. Powers of Court to enforce execution. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison [for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section]; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Order 21: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, [the Court shall allow] the defect to be remedied then and there or within a time to be fixed by it. (1-A) ...... (2) .......... (3)........... (4) .......... Provided that , in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree. 11. A reading of these provisions show that the CPC had not laid down the jurisdiction of an Executing Court. It cannot be since an Executing Court would be a Court which would be able to issue a process of execution within the limits of its territorial jurisdiction only, if the property or the person which is the subject-matter of the decree is found and available within such territory. It can attach a property which is within its territorial jurisdiction. It can detain a judgment debtor who lives within its territorial jurisdiction. It can appoint receiver of a property also which is only with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the USA. The subject matter of the award which is a money award, being money is within the territorial jurisdiction of this Court and consequently, under the explanation to Section 47 of the Act this Court having jurisdiction over the subject matter of the award would be the correct Executing Court in enforcement of the foreign award obtained by the appellant under Section 48 of the Act. 14. In the case of Brace Transport Corporation of Monrovia, Bermuda Vs. Orient Middle East Lines Ltd., Saudia Arabia Ors. AIR 1994 SC 1715 the enforcement of a foreign award under the Foreign Awards (Recognition and Enforcement) Act (45 of 1961) was considered. That was a case of a foreign money award. The respondent owned a vessel which was sold to a partnership firm in Bhavanagar in the State of Gujarat for being broken in the port of Alang. The vessel was beached at Alang. The application for enforcement of the award was filed in the Court of the Civil Judge Senior Division at Bhavanagar. The award holder applied for attachment of the sale proceeds of the vessel and injunction against its transfer pending the execution under Order 38 Rule 5 of the CPC (as an attachment before judgment). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve) assets available to meet the award. In that case the respondents had no asset there except the ship which was sold to the partnership firm and beached at the place where the award was sought to be enforced. 18. The Court observed the analogy between an award for money in arbitration and a money decree in a litigation in para 16 of the judgment thus: 16. This being an award for money its subject-matter may be said to be money, just as the subject-matter of a money-decree may be said to be money . The Court, therefore, directed the Bhavnagar Court to take the award on file under the provisions of Section 5 of the Foreign Awards Act and proceed in accordance with the subsequent provisions under the Act for enforcement of the award. 19. It is clear from a reading of the aforesaid provisions defining the Court and the aforesaid two judgments and considering the reason and logic behind the distinction as also the analogous provisions with regard to enforcement of decrees that since the appellant claims that it can execute the award within the territorial jurisdiction of this Court that itself bestows this Court with the territorial jurisdiction, it having within its t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al jurisdiction. Hence the respondent s application has been returned to the competent Court for filing. That is the Court in which the arbitration agreement is stated to have been executed and where the immovable properties of the respondent lie i.e., in Vashi, Navi Mumbai, District: Thane. Consequently, that petition has been filed and is pending in the Thane Court. 23. It is contended on behalf of the respondent that the award cannot be enforced until that application is decided. That stands to reason. If the award is enforced before the application to set it aside is heard that application would become infructuous without the respondent being heard. It is contended on behalf of the applicant that the various exceptions for refusal of the enforcement of the award under Section 48 would themselves act as a shield against the respondent and the respondent would be entitled to show this Court as the Executing Court having territorial jurisdiction why the application for enforcement of the foreign award should be refused including his plea that the award is against public policy in India because it was passed in the absence of the respondent and is accordingly stated to be an ex- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment debtor in enforcing and having set aside the award respectively in a single application. In view of the specific provision under Section 48(2)(b) another application in another Court under Section 34 of the Act would not be required to be agitated. It can be fruitfully done by one Court hearing either an application under Section 48(2)(b) of the award holder and under Section 34 of the judgment debtor. In view of what has been held by the Supreme Court in the case of Venture Global (supra) we hold that both the applications of the parties hereto be decided by one Court. 27. This Court is seen to have the territorial jurisdiction as an Executing Court. It was in this Court that the respondent also initially filed its application under Section 34 of the Act to set aside the foreign award obtained by the appellant. The application under Section 34 which was initially filed here and which was returned to the Court in Thane District for filing would be required to be re-presented to this Court if the respondent seeks to agitate it. Even if the respondent does not seek to agitate, the respondent would be heard on merits by its claim in the Execution Application No.681 of 2011 by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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